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Firing

There’s danger in every aspect of firing, from WARN Act layoffs and exit interviews to constructive discharge and more.

Learn how to fire an employee and sidestep wrongful termination lawsuits, with battle-tested firing procedures, and employment termination letters. At last, you can fire at will!

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File it under “Ironic.” The Scooter Store faces EEOC charges that it failed to accommodate an employee who had a hard time getting around because of an injured knee. The New Braunfels-based chain sells motorized scooters and power chairs for people with limited mobility.

It’s true that at-will employees can be fired for any reason or no reason at all, as long as that reason isn’t discriminatory. Many employers therefore conclude that they don’t have to tell an employee why he’s being let go. But some even conclude they don’t have to document the reason, either. That can be a big mistake.

A new law allows the California Labor and Workforce Development Agency (LWDA) to levy fines of at least $5,000 against employers that misclassify workers and requires the em­­ployers to publicize their violations on their company websites. Em­­ployers face penalties as high as $25,000 for willfully misclassifying employees as independent contractors.
Want to avoid needless and ex­­pensive lawsuits? One good place to start is by encouraging respect and civility. That’s because sometimes hurt feelings are enough to spur a lawsuit.

Under what’s called the Cat’s Paw Theory, employers can’t de­­fend themselves against employment discrimination claims by saying they didn’t know a supervisor was biased. The theory was first introduced in Shager v. Upjohn, a 1990 7th Circuit Court of Appeals decision.

Poor performers facing disciplinary action may despair when they realize they can’t improve fast enough to avoid termination. Often, that’s when they request a transfer to another open position within the organization. But before you agree to a transfer, be sure to demand the employee’s request in writing and outline exactly why the transfer is being arranged.

You won’t find many employers extolling the upsides of having a unionized workforce, but there is one advantage. If your union contract provides for a probationary period before an employee becomes a permanent part of your workforce, you may have more discretion in how you discipline the new em­­ployee.

Much as you would like to, you can’t control every statement that comes out of supervisors’ mouths. Someday, someone somewhere within your organization will utter an ethnic comment or slur. That doesn’t have to become the basis for a successful lawsuit—as long as you have a track record of treating all employees fairly.

Q. One of our employee’s job performance no longer meets our standards. While she used to be a good worker, she’s now making a lot of errors, coming in late from time to time and not getting along with her co-workers ... If we fire her for poor performance—which we would consider termination for cause—will she be eligible to collect unemployment compensation?
Some whistle-blowing employees think they can’t be disciplined if they report alleged wrongdoing to authorities or upper management. That’s not true. Employers can always discipline employees who break rules or perform poorly. The key is fairness and equal treatment.
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